When a Walkout Hits: Employees' and Employers' Rights During a Protest
Under the National Labor Relations Act, employees in the United States like those who took action Thursday at Google have the right to protest peacefully without retaliation if a walkout is sparked by directly workplace-related issues.
November 01, 2018 at 06:43 PM
4 minute read
The original version of this story was published on Corporate Counsel
Google employees participate in a walkout to protest how the tech giant handled sexual misconduct in Mountain View, California, on Nov. 1. The mass walkout was sparked by a recent report by The New York Times that claimed Google gave millions of dollars to some executives in secret exit packages after they were accused of sexual misconduct. Photo Credit: Michael Short/Bloomberg L.P.
Thousands of Google employees in offices around the world staged a walkout Thursday to protest an alleged culture that fosters sexual harassment at the Mountain View, California-based tech company.
The walkout comes a week after reports from The New York Times that Google protected male executives accused of sexual misconduct and inappropriate relationships with subordinates, including then-Google general counsel and now-parent company Alphabet chief legal officer David Drummond.
Protest organizers demanded equal pay, a clear process for reporting sexual misconduct, an end to forced arbitration, a publicly disclosed sexual harassment transparency report and for the chief diversity officer to answer directly to the CEO.
Under the National Labor Relations Act, employees in the United States have the right to protest peacefully without retaliation if a walkout is sparked by directly workplace-related issues,
“Sometimes employers are surprised at how broad those rights are. We tend to associate walkouts with unions, but union or no union employees have a right under Section 7 of the National Labor Relations Act to engage in what's called concerted and protected activity,” said Steven Bernstein, a partner at Fisher & Phillips. “And a group walkout, protest over wages or working conditions falls right within the crosshairs of that protection.”
Employers can't retaliate against employees walking out over workplace-related issues. Maria Anastas, an employment lawyer at Ogletree, Deakins, Nash, Smoak & Stewart, said that retaliation can take many forms, not just termination.
If an employee is disciplined or passed on a promotion because of participation in a walkout, Anastas said that would likely be considered unlawful. She noted that, outside of the law, many companies may take PR backlash into account when handling a walkout.
“Generally speaking [companies] don't want to have any negative publicity associated with how they responded to the walkout, and … many employers will sort of overlook employee absences or tardies instead of just getting ready to discipline,” Anastas said.
Legally, however, companies could discipline employees for tardiness and absences related to walkouts, if there are policies in place that are regularly followed. But even neutrally applied attendance work rules are complicated if walkout participants take paid time off.
Anastas said that the legal implication of protesters' use of PTO can vary by situation, but in the past she has advised a company not to discipline employees using sick days on a walkout.
Marta Fernandez, a Jeffer Mangels Butler & Mitchell partner and co-chair of the firm's labor and employment department, said in-house counsel can ease some legal confusion by informing employees of their rights in the case of a walkout, and let workers know what isn't allowed.
“It's prudent to immediately try to minimize [the walkout's risk] by publishing to employees what their rights are, but also what their responsibilities are,” Fernandez said. “In other words, you may have a right to be engaging in this conduct, but … here are the areas that are not protected, if you engage in misconduct.”
That misconduct includes verbal or physical threats, property damage, violence and protesting in restricted areas.
Bernstein said that in-house lawyers and other company leaders can work information on what is and isn't allowed under the NLRA into annual training sessions. This way, if a walkout does happen, managers and other staff are aware of legal rights.
“Many companies work it into annual employee relations training, in order to make sure that at least, if nothing else, there's a general awareness among management that this could be protected,” Bernstein said. “Sometimes it helps to instill in them a sensitivity of these issues so that if they come up without advance notice, at least bells and whistles are going off in the heads of managers thinking this may be a place where we need assistance before taking action.”
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